The Supreme Court has held workers that are required to sleep at or near their place of work are not working for purposes of National Minimum Wage
These Employees were:
- required to remain on site
- permitted to sleep and provided facilities to do so
- but kept listening ear out for emergencies that they must respond to
- paid a Night Shift allowance of £22.35 and an addition of £6.70 to cover first hour of disturbance.
SC interpreted the NMW laws and the exception with the NMW laws for sleep in working strictly in keeping with the wording and what Parliament intended. That exception only applies if:
- expected to sleep during Night Shift
- provided facilities to do so.
The exception would not apply to an Engineer on call who is allowed to nap during his shift but must remain on call.
The full Judgment can be read here
Yesterday (Tuesday 11 May) marked 50 days remaining until the deadline of 30 June 2021 for applications to be made to the EU Settlement Scheme (EUSS).
The Home Office has stated that the 50 day milestone provides an important opportunity for them to work with Businesses to bring the fast-approaching deadline to the attention of eligible EU employees.
All EU, EEA and Swiss citizens and their family members who were resident in the UK by 31 December 2020, are encouraged to apply without delay so that they can continue to work, study, and access free healthcare and benefits in the UK after 30 June 2021.
It is not the responsibility of Businesses to make sure EU employees have applied, but businesses can play a role by reminding employees of the approaching deadline and cascading the information in the employer toolkit available on GOV.UK.
We would also remind you that businesses will not need to carry out retrospective Right to Work Checks on existing employees after the 30 June 2021 deadline. However, from 1 July, new EU, EEA and Swiss employees that you hire will need to demonstrate their right to work either with the pre-settled or settled status, or with a visa under the points-based immigration system.
Businesses must also remember that the new right to work checks (see our previous circular) comes into force in less than a week, 17 May 2021. These new checks will be one of the topics being discussed at our Annual Employment Law and HR Conference on 10 June 2021.
We have received queries from a number of Member Companies regarding their obligations in relation to EU Settlement Scheme; in light of this we have put together this short explanatory note.
The deadline for workers applying to the Scheme is 30 June 2021. Any EU worker who wishes to apply must do so before then.
You should be aware that your employees are not obliged to inform you that they have applied to the Settlement Scheme, nor are they obliged to inform you of the outcome of any application. Similarly, you should not check if an employee has applied.
It is also very important to note that an offer of employment, or continued employment, cannot be made dependent on an individual having made an application to the EU Settlement Scheme.
There is no legal obligation on employers to inform their employees about the EU Settlement Scheme. However if you employ EU workers it is sensible to raise awareness of the Scheme in your workplace and you may find the EU Settlement Scheme Employers Toolkit helpful.
When raising awareness, you must take care not to discriminate against EU citizens. We therefore recommend that your raise awareness generally across the whole workplace. When raising awareness, you should be careful not to go further and provide immigration advice to employees unless you are qualified to do so.
Finally there is no, and will be no, requirement for employers to conduct any retrospective checks on the right to work of existing workers. The previous right to work checks conducted when the individual commenced work will remain valid. There will however be a change in respect of the right to work checks conducted on new recruits commencing employment after 30 June 2021.
With Portugal unexpectedly moving from the Green to Amber list of countries from 4am on 8 June, it may affect your employees’ planned return to work.
Communication:
Businesses should have clearly communicated to employees before their holiday the approach they will take if the employee is required to quarantine on return. This ensures that employees knew the rules prior to leaving and what will happen on their return.
If your business has not clearly communicated its position this may influence how you deal with the situation this time i.e. with employees returning from Portugal (see below).
We recommend your business clearly communicates the approach it will be taking over the summer months. This should include what will happen if employees go abroad and the country they are in changes listing unexpectedly.
Unless you had clear rules and previously communicated your position in advance of their holiday, you may choose to deal with employees returning from Portugal in a more sympathetic way.
In terms of the quarantine period, you could consider the following:
Work from Home:
Can you facilitate the employee working from home during the quarantine period?
Annual Leave:
Does employee have annual leave they could use for some/all of the quarantine period?
Unpaid/Authorised Absence:
Can you facilitate the employee taking unpaid leave and will this be on an authorised basis?
Disciplinary Action:
If you have not communicated your approach in advance, it may be difficult for your business to take any stronger action against the employee. If you are considering disciplinary action, then we recommend you first speak to the Legal Team.
If you do have clear rules that have been communicated then disciplinary action may be reasonable. However, your business might decide to distinguish between:
- Employees who knowingly have travelled to an Amber Country when they knew they were expected back at the workplace and;
- Employees who travelled to a Green Country and the country unexpectedly changed.
What is clear is that you should not allow, or even encourage, any employee required to quarantine to attend the workplace.
The Home Office has confirmed a further extension on the modified right to work checks as a result of covid; this is unsurprising given the delay in further relaxations to the current restrictions. They have confirmed that the temporary relaxation on face to face checks made on 30 March 2020 will now remain in place until 31 August 2021 (inclusive)
Members should also note that the Home Office previously confirmed they have abandoned the requirement to carry out retrospective checks.
Therefore, Members do not need to go back through their employees recruited in period 30 March – 31 August 2021 to do any further checks. The updated Guidance can be accessed on this link: Advice for employers carrying out right to work checks during the coronavirus pandemic.
On 28 June 2021, the EU confirmed that it had formally approved the EU Adequacy Decision for the UK.
This is good news for Member organisations who transfer personal data from the Republic of Ireland or any other EU (EEA) States to Northern Ireland, as the decision means that:
- UK is no longer treated as a third country;
- Personal data can now flow freely from EU to UK, as the EU has found that the UK offer an essentially equivalent level of protection to that guaranteed under EU law.
Earlier this year the UK recognised EEA Member States as having ‘adequate protection’ for personal data, therefore personal data can also be transferred from the UK to the EU without businesses having to apply additional safeguards.
For the first time ever in its Adequacy Decision, the EU have included what is known as a ‘sunset clause.’ This clause limits the duration of the Adequacy Decision to four years, after which it will automatically expire. At that stage, the EU will then review it and will only renew the Adequacy Decision if the UK continues to ensure an adequate level of data protection. Consequently it will be important for the UK to keep pace with any changes to Data Protection rules in the EU.
Member organisations should of course ensure that Privacy Notices and relevant GDPR documentation identify if personal data is being transferred outside the country, and provide other necessary details such as where it is being transferred, how it will be used, stored and who will have access etc.
The Adequacy Decision can be accessed here and the announcement here.
As Members will be aware, on 1 July 2021 the process for completing right to work checks changed.
With the exception of Irish citizens, from 1 July 2021 employers are no longer able to accept EU passports or ID cards as valid proof of right to work for new staff.
Instead, employers must conduct an online check for job applicants who hold digital proof of their immigration status in the UK (known as an eVisa). This applies to most EU citizens, including those with settled or pre-settled status, those with a Hong Kong BNO visa and some other nationalities who have moved to the UK more recently under the points-based immigration system.
A manual check can be completed for UK and Irish nationals who can use their passport, or other identity document, as proof of their right to work. Employers will also need to complete a manual check for individuals in the UK who cannot prove their immigration status online.
We would remind Members that you do not need to retrospectively check the status of any EU, EEA, or Swiss citizens you employed before 1 July 2021.
The Home Office has now developed a right to work check video which can be accessed HERE
This video guides you through the new right to work check process, including details of applicant information required for both types of check and links to further information.
We are delighted to formally announce the expansion of EEFNI services to the Republic of Ireland. Our service will include HR and employment advice and legal representation.
This service will commence on Monday, 4 October 2021 and is available to all existing EEFNI Members with businesses in the Republic of Ireland.
Membership fees for the Republic of Ireland will be calculated separately, based on the payroll records of the business entity in the Republic of Ireland.
If you have previously expressed an interest in this service or would like to receive details of the annual subscription fees for ROI Membership, please contact John Gibson, Office Manager john@eefni.org.
This is an exciting next step for the team at EEF NI and we are very much looking forward to developing our all Ireland service.
The ICO has recently launched a call for evidence and consultation on the following areas, which we believe are relevant to Members.
- Call for Evidence: Employment Practices Guidance
- Consultation: How organisations can continue to protect people’s personal data when it’s transferred outside of the UK.
These are discussed in more detail below.
1. Call for Evidence: Employment Practices Guidance:
The Information Commissioner is calling for views on data protection and employment practices to help shape the review of the current guidance. The call for evidence is open until 21 October 2021;
Members may be aware that the ICO has detailed employment practices guidance, including the employment practices code, supplementary guidance and the quick guide. These are now considered outdated as much has changed since they were published, both in terms of data protection law and the way everyone works.
The ICO plan to replace the existing guidance with new, more user-friendly online resources that are topic-specific. The aim is to ensure that the new guidance addresses the changes in data protection law, reflects the changes in the way employers use technology and interact with staff and meets the needs of the people who use the guidance.
The Commissioner is seeking input from relevant stakeholders, including employers and will use the responses to inform their review resource. The Guidance is intended to cover ‘workers’ as well as employees, contractors, volunteers, gig and platform workers.
There are several ways to participate in the call for evidence. You can either complete the online survey or fill in the Word document which has the same information. Alternatively, if you wish to pass on your feedback/views to us we can feed them into the survey on your behalf.
The online survey is live already and can be accessed by following this link: Snap Surveys
One of the ICO Commissioners has produced a blog further explaining the reasoning behind this review: Data Protection & Employment Practices
2.Consultation: How organisations can continue to protect people’s personal data when it’s transferred outside of the UK.
On 11 August 2021, the ICO has launched an eight-week consultation on its draft international data transfer agreement (IDTA) guidance.
An IDTA is a contract that organisations can use when transferring data to countries not covered by adequacy decisions. This will replace current standard contractual clauses (SCCs) to take into account the binding judgment of the European Court of Justice in a case commonly known as ‘Schrems II’.
The IDTA will ensure there are the safeguards of high standards of data protection and support the UK’s digital economy by enabling the global flow of information.
It is recognised that international transfers can be complex and therefore the ICO has stated that they have designed the new guidance to be accessible and offer support to all organisations.
For more information about the IDTA guidance, go to: Consultation on Data
The consultation will remain open until 5pm on 7 October 2021. The ICO will use the responses to develop the final documents.
To respond to this consultation Members can download and complete the consultation paper https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/ico-consultation-on-data-transferred-outside-of-the-uk/ and email to IDTA.consultation@ico.org.uk
Alternatively, Members can email us any views they have any, and we will input them into the Consultation.
On 30 March 2020, the Home Office made temporary changes to right to work checks in that they allowed:
- Checks to be carried out over video calls;
- Job applicants and existing workers to send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- Employers to use the Home Office Employer Checking Service if a prospective or existing employee could not provide any of the accepted documents.
These temporary changes have been extended on various dates:
- 17 May 2021
- 20 June 2021
- 31 August 2021
The Home Office has confirmed that the temporary checks will now remain in place up to and including 5 April 2022. In their updated Guidance: Coronavirus (COVID-19): right to work checks it states:
“The end date for the temporary adjusted checks has now been deferred to 5 April 2022 (inclusive). We have made the decision to defer the date following the positive feedback we received about the ability to conduct checks remotely. We initiated a review of the availability of specialist technology to support a system of digital right to work checks in the future. The intention is to introduce a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security.”
The full right to work checks only need to be conducted from 6 April 2022.
With the Work from Home message currently still in place in Northern Ireland this will be very welcome news for employers.